In re BofI Holding, Inc. Securities Litigation
BofI Holding, Inc. Securities Litigation
Case No. 3:15-cv-2324-GPC-KSC (S.D. Cal.)

Frequently Asked Questions

 

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  • The Court directed that the Notice be mailed to you because you or someone in your family or an investment account for which you serve as a custodian may have purchased or otherwise acquired BofI Common Stock and/or BofI Call Options, or sold BofI Put Options, during the Class Period. The Court has directed us to send you the Notice because, as a potential Class Member, you have a right to know about your options before the Court rules on the proposed Settlement. Additionally, you have the right to understand how this class action lawsuit may generally affect your legal rights. If the Court approves the Settlement, and the Plan of Allocation (or some other plan of allocation), the claims administrator selected by Lead Plaintiff and approved by the Court will make payments pursuant to the Settlement after any objections and appeals are resolved.

    The purpose of the Notice is to inform you of the existence of this case, that it is a class action, how you might be affected, how to exclude yourself from the Class if you wish to do so, and how to opt back into the Class if you wish to do so. It is also being sent to inform you of the terms of the proposed Settlement, and of a hearing to be held by the Court to consider the fairness, reasonableness, and adequacy of the Settlement, the proposed Plan of Allocation and the motion by Class Counsel for an award of attorneys’ fees and reimbursement of litigation expenses and Lead Plaintiff’s request for a service award (the “Settlement Hearing”). See paragraph 77 of the Notice for details about the Settlement Hearing, including the date and location of the hearing.

    The issuance of the Notice is not an expression of any opinion by the Court concerning the merits of any claim in the Action, and the Court still has to decide whether to approve the Settlement. Defendants deny the allegations of wrongdoing asserted in this Action, and deny any liability whatsoever to any member of the Class. If the Court approves the Settlement and a plan of allocation, then payments to Authorized Claimants will be made after any appeals are resolved and after the completion of all claims processing. Please be patient, as this process can take some time to complete.

  • If you are a member of the Class, you are subject to the Settlement, unless you timely request to be excluded. The Class consists of:

    All persons and entities that, between September 4, 2013 through and including October 13, 2015, purchased or otherwise acquired shares of the publicly traded common stock of BofI, as well as purchasers of BofI call options and sellers of BofI put options, and were damaged thereby.

    Excluded from the Class are Defendants herein, the officers and directors of BofI at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns, and any entity in which Defendants have or had a controlling interest.

    Also excluded from the Class are any persons or entities who or which exclude themselves by submitting a request for exclusion in accordance with the requirements set forth in the Notice. If you previously submitted a request for exclusion from the Class but you wish to opt back into the Class, the procedures outlined below in “If I Previously Requested Exclusion From the Class But I Now Wish to be a Member of the Class, How do I Opt Back In?”

    PLEASE NOTE: RECEIPT OF THE NOTICE DOES NOT MEAN THAT YOU ARE A CLASS MEMBER OR THAT YOU WILL BE ENTITLED TO RECEIVE PROCEEDS FROM THE SETTLEMENT. IF YOU ARE A CLASS MEMBER AND YOU WISH TO BE ELIGIBLE TO PARTICIPATE IN THE DISTRIBUTION OF PROCEEDS FROM THE SETTLEMENT, YOU ARE REQUIRED TO SUBMIT THE CLAIM FORM AND THE REQUIRED SUPPORTING DOCUMENTATION POSTMARKED NO LATER THAN NOVEMBER 7, 2022.

  • Lead Plaintiff has thoroughly reviewed and analyzed the facts and circumstances relating to the claims asserted in the Action, including conducting arm’s length discussions with counsel to the Defendants, reviewing publicly available information, analyzing the extensive discovery record, reviewing applicable case law and other authorities and consulting with retained experts.  Lead Plaintiff brought its claims in good faith and continues to believe that its claims have legal merit.  However, Lead Plaintiff recognizes that there are legal and factual defenses to the claims asserted in the Action, which present substantial risks to the successful resolution of any litigation, especially in complex securities fraud litigation such as this Action.

    Accordingly, in light of these risks and based on its evaluation of the claims and its substantial experience, Lead Plaintiff and Class Counsel have determined that the Settlement, which confers substantial benefits upon the Class, is fair, reasonable and adequate, and in the best interests of the Class.

    Defendants have denied the claims asserted against them in the Action and deny having engaged in any wrongdoing or violation of law of any kind whatsoever. Defendants further deny that any member of the Class suffered damages, in any amount, as a result of Defendants’ conduct. Defendants have agreed to the Settlement solely to eliminate the burden and expense of continued litigation. Accordingly, the Settlement may not be construed as an admission of any wrongdoing by Defendants.

  • If there were no Settlement and Lead Plaintiff failed to establish any essential legal or factual element of its claims against Defendants, neither Lead Plaintiff nor the other Class Members would recover anything from Defendants. Also, if Defendants succeeded in proving any of their defenses, either at summary judgment, at trial, or on appeal, the Class could recover substantially less than the amount provided in the Settlement, or nothing at all.

  • As a Class Member, you are represented by Lead Plaintiff and Class Counsel, unless you enter an appearance through counsel of your own choice at your own expense.

    You are not required to retain your own counsel, but if you choose to do so, such counsel must file a notice of appearance on your behalf and must serve copies of his or her appearance on the attorneys listed in the section entitled, “May I speak at the settlement hearing?,” below.

    If you are a Class Member and do not wish to remain a Class Member, you may exclude yourself from the Class by following the instructions below in “How do I exclude myself from the Class?”.

    If you are a Class Member and you wish to object to the Settlement, the Plan of Allocation, or Class Counsel’s application for attorneys’ fees and reimbursement of litigation expenses, and if you do not exclude yourself from the Class, you may present your objections by following the procedures below in “How do I tell the Court that I do not like something about the proposed Settlement?”

    If you are a Class Member and you do not exclude yourself from the Class, you will be bound by any orders issued by the Court. If the Settlement is approved, the Court will enter a judgment (the “Judgment”). The Judgment will dismiss with prejudice the claims against Defendants and will provide that, upon the Effective Date of the Settlement, Lead Plaintiff and each of the other Class Members, on behalf of themselves, and their respective heirs, executors, administrators, predecessors, successors, and assigns in their capacities as such, will have fully, finally and forever compromised, settled, released, resolved, relinquished, waived and discharged each and every Released Claim against the Released Defendant Parties, and shall forever be barred and enjoined from prosecuting any or all of the Released Claims against any of the Released Defendant Parties.

  • To be eligible for a payment from the proceeds of the Settlement, you must be a member of the Class and timely complete and return the Claim Form with adequate supporting documentation postmarked no later than November 7, 2022. A Claim Form is included with the Notice, or you may obtain one from the important documents tab on this website, or you may request that a Claim Form be mailed to you  by  calling  the  Claims  Administrator  toll  free  at  888-921-1538. Please retain all records of your ownership of and transactions in BofI Securities, as they may be needed to document your Claim. If you request exclusion from the Class or do not submit a timely and valid Claim Form, you will not be eligible to share in the Net Settlement Fund.

    If you previously requested exclusion from the Class but you wish to opt back into the Class, you must follow the procedures outlined below in “If I previously requested exclusion from the Class but I now wish to be a member of the Class, how do I opt back in?”.

  • At this time, it is not possible to make any determination as to how much any individual Class Member may receive from the Settlement. For more information about how the Net Settlement Fund will be distributed among Class Members, please refer to the Plan of Allocation.

    Pursuant to the Settlement, Defendants have agreed to pay or caused to be paid fourteen million one hundred thousand dollars ($14,100,000.00) in cash. The Settlement Amount will be deposited into an escrow account. The Settlement Amount plus any interest earned thereon is referred to as the “Settlement Fund.” If the Settlement is approved by the Court and the Effective Date occurs, the “Net Settlement Fund” (that is, the Settlement Fund less (a) all federal, state and/or local taxes on any income earned by the Settlement Fund and the reasonable costs incurred in connection with determining the amount of and paying taxes owed by the Settlement Fund (including reasonable expenses of tax attorneys and accountants) (i.e., Taxes); (b) the costs and expenses incurred in connection with providing notice to Class Members and administering the Settlement on behalf of Class Members (i.e., Notice and Administration Costs); and (c) any attorneys’ fees and litigation expenses awarded by the Court to Class Counsel, and any Service Award for Lead Plaintiff) will be distributed to Class Members who submit valid Claim Forms, in accordance with the proposed Plan of Allocation or such other plan of allocation as the Court may approve.

    The Net Settlement Fund will not be distributed unless and until the Court has approved the Settlement and a Plan of Allocation, and the time for any petition for rehearing, appeal or review, whether by certiorari or otherwise, has expired.

    Please refer to the Plan of Allocation in the Notice on pages 11-17, Paragraphs 50-66. 

  • The Settlement provides $14,100,000 in cash for the benefit of the Class. The Settlement Amount and any interest it earns constitute the “Settlement Fund.” The Settlement Fund, after deduction of Court-approved attorneys’ fees and expenses including Lead Plaintiff’s service award, Notice and Administration Expenses, Taxes, and any other fees or expenses approved by the Court, is the “Net Settlement Fund.” If the Settlement is approved by the Court, the Net Settlement Fund will be distributed to eligible Authorized Claimants - i.e., members of the Class who timely submit valid Claim Forms that are accepted for payment by the Court - in accordance with the proposed Plan of Allocation (“Plan of Allocation” or “Plan”) or such other plan of allocation as the Court may approve. Class Members who do not timely submit valid Claim Forms will not share in the Net Settlement Fund, but will otherwise be bound by the Settlement. The Court may approve the proposed Plan of Allocation, or modify it, without additional notice to the Class. Any order modifying the Plan of Allocation will be posted on this website.

    The objective of the Plan of Allocation is to distribute the Settlement proceeds equitably among those Class Members who suffered economic losses as a proximate result of the alleged wrongdoing. The Plan of Allocation is not a formal damage analysis, and the calculations made in accordance with the Plan of Allocation are not intended to be estimates of, or indicative of, the amounts that Class Members might have been able to recover after a trial. Nor are the calculations in accordance with the Plan of Allocation intended to be estimates of the amounts that will be paid to Authorized Claimants under the Settlement. The computations under the Plan of Allocation are only a method to weigh, in a fair and equitable manner, the claims of Authorized Claimants against one another for the purpose of making pro rata allocations of the Net Settlement Fund.

    The proposed Plan of Allocation can be found in the Notice, which is available on the Important Documents tab of this website.

  • Class Counsel will apply to the Court to be paid from the Settlement Fund, and any payment will be made only in the amount that is approved by the Court. Class Counsel will ask the Court for an award of attorneys’ fees of no more than 25% of the Settlement Fund (i.e., no more than $3,525,000). In addition, Class Counsel will ask the Court to reimburse them out of the Settlement Fund for the expenses they reasonably incurred and will incur in litigating this case on behalf of Class Members, in an amount not to exceed $1,400,000. Class Counsel will also ask the Court to approve a Service Award of up to $15,000 for the Class Representative as an award for its service to the Class as Plaintiff and Class Representative out of the Settlement Fund. The amount of the Settlement Fund that remains after the payment of all Court-approved attorneys’ fees, reimbursement of expenses, and Service Award will be distributed to Class Members who have submitted valid claims for compensation and have not timely excluded themselves from the Settlement in a manner approved by the Court.

    Class Counsel and Defendants have not discussed the issue or amount of attorneys’ fees in their negotiations of this Settlement; Defendants have the right to oppose Class Counsel’s application for fees, reimbursement of expenses, and Service Award to the Class Representative, and Class Members have the right to object. The Court will decide the attorneys’ fees and expenses and Service Award to be paid. Any attorneys’ fees, expenses, or Service Award approved by the Court will be paid from the $14.1 million Settlement Fund.

    Class Counsel’s application for attorneys’ fees, expenses, and Service Award will be made available on this website before the deadline for you to comment on or object to the Settlement. You can also request a copy of the application by contacting the Settlement Administrator at info@BofISecuritiesLitigation.com.

  • Each Class Member will be bound by all determinations and judgments in this lawsuit, whether favorable or unfavorable, unless such person or entity mails or delivers a written Request for Exclusion from the Class, addressed to BofI Holding, Inc. Securities Litigation, EXCLUSIONS, c/o JND Legal Administration, P.O. Box 91425, Seattle, WA 98111. The exclusion request must be received no later than August 8, 2022. You will not be able to exclude yourself from the Class after that date.   Each Request for Exclusion must (a) state the name, address and telephone number of the person or entity requesting exclusion, and in the case of entities the name and telephone number of the appropriate contact person; (b) state that such person or entity “requests exclusion from the Class in In re BofI Holding, Inc. Securities Litigation, Case No. 3:15-cv-2324-GPC-KSC”; (c) identify and state the number of each BofI Common Stock, BofI Call Options, or BofI Put Options that the person or entity requesting exclusion purchased/acquired and/or sold during the Class Period (i.e., between September 4, 2013 and October 13, 2015, inclusive), as well as the dates and prices of each such purchase/acquisition and sale; and (d) be signed by the person or entity requesting exclusion or an authorized representative. A Request for Exclusion shall not be valid and effective unless it provides all the information called for in this paragraph and is received within the time stated above, or is otherwise accepted by the Court.

    If you do not want to be part of the Class, unless you requested exclusion from the Class in connection with the Class Notice, you must follow these instructions for exclusion even if you have pending, or later file, another lawsuit, arbitration, or other proceeding relating to any Released Claims against any of the Releasing Defendant Parties.

    If you ask to be excluded from the Class, you will not be eligible to receive any payment out of the Net Settlement Fund.

  • Any such Person who wishes to opt back into the Class must either, individually or through counsel, request to opt back into the Class in writing to the Claims Administrator and must be mailed or delivered such that it is received no later than August 8, 2022, at In re BofI Holding, Inc. Securities Litigation, EXCLUSIONS, c/o JND Legal Administration, P.O. Box 91425, Seattle, WA 98111.  Each request to opt back into the Class must: (a) provide the name, address and telephone number of the person or entity requesting to opt back into the Class; (b) state that such person or entity “requests to opt back into the Class in In Re BofI Holding Inc. Securities Litigation, 3:15-cv-02324-GPC-KSC”, and (c) be signed by the person or entity requesting to opt back into the Class or an authorized representative.

    Please note, if you opt back into the Class, in order to be eligible for a payment from the proceeds of the Settlement, you must be a member of the Class and timely complete and return the Claim Form with adequate supporting documentation postmarked no later than November 7, 2022.

  • The Settlement Hearing will be held on Friday, October 7, 2022, at 1:30 p.m., before the Honorable Gonzalo P. Curiel at the United States District Court for the Southern District of California, Edward J. Schwartz United States Courthouse, Courtroom 2D, 221 West Broadway, San Diego, CA 92101. The Court reserves the right to approve the Settlement, the Plan of Allocation, Class Counsel’s motion for an award of attorneys’ fees and reimbursement of litigation expenses (including Lead Plaintiff’s Service Award) and/or any other matter related to the Settlement at or after the Settlement Hearing without further notice to the members of the Class.

  • Any Class Member who or which does not request exclusion may object to the Settlement, the proposed Plan of Allocation or Class Counsel’s motion for an award of attorneys’ fees and reimbursement of litigation expenses. Objections must be in writing. You must file any written objection, together with copies of all other papers and briefs supporting the objection, with the Clerk’s Office at the United States District Court for the Southern District of California at the address set forth below so that the papers are received on or before August 8, 2022. You must also serve the papers on Class Counsel and on Defendants’ Counsel at the addresses set forth below so that the papers are received on or before August 8, 2022.

    Clerk's Office
    Clerk of the Court
    United States District Court
    Southern District of California
    333 West Broadway, Suite 420
    San Diego, CA 92101

    Class Counsel
    Richard Heimann
    Katherine Lubin Benson
    Michael K. Sheen
    Lieff Cabraser Heimann & Bernstein, LLP
    275 Battery Street, 29th Floor
    San Francisco, CA 94111-3339

    Defendants' Counsel
    John P. Stigi III
    Sheppard, Mullin, Richter & Hampton, LLP
    1901 Avenue of the Stars, Suite 1600
    Los Angeles, CA 90067

     

    Any objection: (a) must state the name, address and telephone number of the person or entity objecting and must be signed by the objector; (b) must contain a statement of the Class Member’s objection or objections, and the specific reasons for each objection, including any legal and evidentiary support the Class Member wishes to bring to the Court’s attention; and (c) must include documents sufficient to prove membership in the Class, including the number of each BofI Security that the objecting Class Member purchased/acquired and/or sold during the Class Period (i.e., between September 4, 2013 and October 13, 2015, inclusive), as well as the dates and prices of each such purchase/acquisition and sale. You may not object to the Settlement, the Plan of Allocation or Class Counsel’s motion for attorneys’ fees and reimbursement of litigation expenses if you exclude yourself from the Class or if you are not a member of the Class. Unless the Court orders otherwise, any Class Member who does not object in the manner described above will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the proposed Settlement, the proposed Plan of Allocation or the Class Counsel's motion for an award of attorneys' fees and reimbursement of litigation expenses (including Lead Plaintiff's Service Award). Class Members do not need to appear at the Settlement Hearing or take any other action to indicate their approval.

    You may file a written objection without having to appear at the Settlement Hearing. You may not, however, appear at the Settlement Hearing to present your objection unless you first file and serve a written objection in accordance with the procedures described above, unless the Court orders otherwise.

    Unless the Court orders otherwise, any Class Member who does not object in the manner described above will be deemed to have waived any objection and shall be forever foreclosed from making any objection to the proposed Settlement, the proposed Plan of Allocation or Class Counsel’s motion for an award of attorneys’ fees and reimbursement of litigation expenses (including Lead Plaintiff’s Service Award). Class Members do not need to appear at the Settlement Hearing or take any other action to indicate their approval.

  • Objecting is telling the Court that you do not like something about the proposed Settlement, the proposed Plan of Allocation, or Lead Counsel’s Fee and Expenses Application.  You can still recover money from the Settlement. You can object only if you stay in the Class.  Excluding yourself is telling the Court that you do not want to be part of the Class.  If you exclude yourself from the Class, you have no basis to object because the Settlement and the Action no longer affect you.

  • Class Members do not need to attend the Settlement Hearing. The Court will consider any submission made in accordance with the provisions even if a Class Member does not attend the hearing. You can participate in the Settlement without attending the Settlement Hearing.

  • If you wish to be heard orally at the Hearing in opposition to the approval of the Settlement, the Plan of Allocation or Class Counsel’s motion for an award of attorneys’ fees and reimbursement of litigation expenses, and if you timely file and serve a written objection, you must also file a notice of appearance with the Clerk’s Office and serve it on Class Counsel and Defendants’ Counsel so that it is received on or before September 16, 2022. Persons who intend to object and desire to present evidence at the Settlement Hearing must include in their written objection or notice of appearance the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the Hearing. Such persons may be heard orally at the discretion of the Court.

    You are not required to hire an attorney to represent you in making written objections or in appearing at the Settlement Hearing. However, if you decide to hire an attorney, it will be at your own expense, and that attorney must file a notice of appearance with the Court and serve it on Class Counsel and Defendants' Counsel at the addresses set forth in Paragraph 78 of the Notice so that the notice is received on or before September 16, 2022.

    The Settlement Hearing may be adjourned by the Court, or held telephonically, without further written notice to the Class. If you intend to attend the Settlement Hearing, you should confirm the date, time and location on this settlement website, and with Class Counsel.

  • The Notice contains only a summary of the terms of the proposed Settlement. 

    For detailed information about the matters involved in this Action, you are referred to the papers filed by Class Counsel in support of the Motion for Preliminary Approval, which are available on this website on the Important Documents page. You can also inspect all papers on file in this Action during regular office hours at the Clerk of the Court, United States District Court for the Southern District of California, 333 West Broadway, Suite 420, San Diego, CA 92101. Subscribers to PACER can also view all papers filed publicly in the Action through the Court’s on-line Case Management/Electronic Case Files Systems at https://pacer.uscourts.gov.

    Copies of any additional important documents filed in or entered by the Court will be posted on this website on the Important Documents page.

  • Brokers and other nominees who purchased or otherwise acquired BofI common stock shares, or purchased BofI call options or sold BofI put options, during the Class Period for the benefit of another person or entity shall: (a) within ten (10) calendar days of receipt of the Notice, request from the Claims Administrator sufficient copies of the Notice and Claim Form to forward to all such beneficial owners/purchasers and within seven (7) calendar days of receipt of those Notice and Claim Form forward them to all such beneficial owners/purchasers; or (b) within ten (10) calendar days of receipt of the Notice, send a list of the names, addresses, and/or email addresses of all such beneficial owners/purchasers to the Claims Administrator in which event the Claims Administrator shall promptly mail/email the Notice and Claim Form to such beneficial owners/purchasers. Where the Claims Administrator receives a valid email address, they shall email the Notice and Claim Form to beneficial owners/purchasers.  Upon full compliance with this Order, such nominees may seek reimbursement of their reasonable expenses actually incurred in complying with this Order, in an amount not to exceed $0.50 plus postage; or $0.05 per transmitted by email; or $0.05 per name, mailing address, and email address (to the extent available) provided to the Claims Administrator, by providing the Claims Administrator with proper documentation supporting the expenses for which reimbursement is sought.  Such properly documented expenses incurred by nominees in compliance with the terms of this Order shall be paid from the Settlement Fund, with any disputes as to the reasonableness or documentation of expenses incurred subject to review by the Court.

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Mail
In re BofI Holding, Inc. Securities Litigation
c/o JND Legal Administration
PO Box 91425
Seattle, WA 98111